Federal Court won’t rule on PBO powers questions

The Federal Court has put aside for possibly another day whether Canada’s parliamentary budget officer has a legal right to demand the government turn over information on its cost-cutting program on a technicality.

But the gist of Monday’s 23-page ruling from Judge Sean Harrington suggests strongly that the government cannot use its majority to deny information to the budget watchdog, and that in case of a dispute, the court has the power to intervene.

In his comments, Harrington puts the onus on his decision to decline to rule on the issue squarely on former PBO Kevin Page, who the court said never asked government departments for the information he argues was denied him.

“Mr. Page’s application shall be dismissed, not on the ground of parliamentary privilege, not on the grounds of statutory interpretation, but on the grounds of non-justiciability,” Harrington writes in his ruling.

“Mr. Page has never actually requested data from any department at the insistence of Mr. (Thomas) Mulcair (NDP leader),” the judge also notes.

“Therefore the questions are hypothetical and I decline to answer them on the grounds of non-justiciability.”

But it also rejects the arguments of the government and speakers of the Commons and Senate that the court has no jurisdiction to render an order on the matter because it would contravene parliamentary privilege.

The PBO and the Treasury Board were reviewing the ruling and said they may comment at a later time. Page was believed to be travelling Monday and was not available.

Mulcair, who was a party with Page in the dispute, said that the judge had clearly found that the PBO has a legal mandate to demand the information.

Declaring victory, the government would be unlikely to refuse in the future if the new PBO requests the information, he predicted.

“I think this decision is so solid and so categorical that the Conservatives can’t … continue to shut down the parliamentary budget officer, and that any future PBO will be able to use that judgment to demand the documents,” he said.

“I don’t think any further litigation will be required, the judgment is crystal clear in that regard.”

Mulcair’s confidence comes from two paragraphs in the ruling:

“Neither on the basis of parliamentary privilege nor on the principles of statutory interpretations has Parliament reserved for itself the right to answer Mr. Page’s questions. That task falls upon the court,” Harrington declares.

At another point he states: “Parliament not only intended that the (PBO) be answerable to it and to its committees, but also to every backbencher irrespective of political stripe. In my view, the purpose of the statute is to shield any given member of either House of Parliament from the will of the majority.”

And still again, the Harrington leaves no doubt he considers the PBO independent with the right to seek government information.

“If the majority wants to abolish the position of the parliamentary budget officer, or define his or her mandate somewhat differently, so be it!” he wrote.

“However, it must do so by legislation. Having made that law by statute, it must unmake it by statute. In the meantime, Parliament has no right to ignore its own legislation.”

“Thomas Mulcair has used the Federal Court and parliamentary budget office to pull a shameless political stunt,” Conway said in a statement.

“The Federal Court has thrown this case out, recognizing it as being ‘hypothetical’ and existing in a ‘factual vacuum.”‘

Mulcair’s lawyer, Paul Champ, said the ruling paves the way for the budget watchdog to take the federal government to court to get documents.

The ruling is somewhat sympathetic to Page for the technicality that kept it, in the judge’s opinion, from rendering a clear-cut decision.

Following the March 2012 budget initiative to cut $5.2 billion from the government’s operational budget, Page requested — and was mostly refused — information from departments about how they intended to administer the cuts.

Finance Minister Jim Flaherty and Treasury Board President Tony Clement also publicly blasted Page for exceeding his mandate, saying that his responsibility was to only inquire about what the government spent, not what it was saving.

When the NDP leader joined the fight by making a formal request to the PBO to seek the information, however, Page decided it would be fruitless to request what had already been rejected and went to court seeking a clarification on his mandate.

He shouldn’t have cut corners, Harrington said.

“Had, for instance, the deputy minister refused Mr. Page information on the grounds that his jurisdiction was limited to the analysis of money proposed to be spent, as opposed to the analysis of alleged savings in comparison with the previous budget, I would have been pleased to answer the question,” he said.

“However, given the studious refusal of the respondents in opposition to Mr. Page to take any position, there is simply no live controversy to be ruled on … I dislike dismissing applications on procedural grounds, but there are times when it is necessary to do so. This is one of those cases.”

The judge said the PBO still has recourse to the courts if information if refused, but that the watchdog must first follow the correct procedures, including exhausting other avenues through the Library of Parliament, the Speakers, the appropriate committees and finally Parliament.